State v. Shifkowski
| Decision Date | 31 July 2001 |
| Docket Number | SD23864 |
| Citation | 57 S.W.3d 309 |
| Parties | State of Missouri, Plaintiff-Respondent, v. Frank Shifkowski, Defendant-Appellant. SD23864 Missouri Court of Appeals Southern District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jasper County, Hon. David C. Dally
Counsel for Appellant: Ty Gaither
Counsel for Respondent: Stacy L. Anderson
Opinion Summary: None
A jury convicted Frank J. Shifkowski (Defendant) of statutory sodomy in the first degree, section 566.062.1 The trial judge set his punishment at twenty years' imprisonment. Defendant appeals from the judgment of conviction and sentence. He charges the trial court erred by not suppressing his inculpatory statement due to non-compliance by police officers with the Miranda procedure and because the statement was extracted from him through duress, fraud, and psychological coercion. Defendant also contends the trial court committed reversible error when it excluded from evidence a videotaped interview of the victim. We affirm.
At the time of trial, Defendant was fifty-eight years old and was the stepfather of the victim. The victim was born July 19, 1986, making her thirteen years old at the time of trial. Viewed in the light most favorable to the verdict and the trial court's overruling of Defendant's motion to suppress, State v. Rousan, 961 S.W.2d 831, 845 (Mo.banc 1998), the facts are as follows:
Defendant married the victim's mother when the victim was six or seven years old. Following this marriage, the victim lived with her mother, her sister, and Defendant in Jasper County, Missouri. Defendant began molesting the victim soon thereafter. Without recounting all the sordid details, evidence presented via the victim's testimony and through Defendant's videotaped statement, if believed, proved the elements of the crime for which Defendant was convicted, i.e., statutory sodomy in the first degree.2
The victim first reported the sexual abuse to her paternal grandmother on October 31, 1999, after she heard a discussion on sexuality in her health class and realized what Defendant had been doing was wrong. The victim's grandmother reported the abuse by calling a hotline of the Division of Family Services. The victim was taken to the Children's Center in Joplin for a S.A.F.E. examination where she was examined by a physician who testified at trial that the results of the examination were consistent with the victim's allegations of sexual abuse.
On November 4, 1999, Defendant gave a videotaped statement to Detective Beckett of the Webb City police department in which he admitted there had been instances when he put his mouth on the victim's vagina and breasts. Before trial, Defendant moved to suppress this statement. The trial court denied the motion.
In November 1999, Defendant was working as an over-the-road truck driver. On November 4, 1999, after completing a trip with his truck, Defendant went with his wife to the Webb City, Missouri, police station where he first talked to Detective Beckett. The initial conversation between the two took place in Beckett's office. Before they talked, Beckett read a Miranda warning to Defendant, and Defendant signed a "waiver of rights form." After signing the waiver, Beckett asked Defendant why he was at the police station. According to Beckett, Defendant answered: "[H]is wife had told him that . . . her daughter had made some accusations about him." Beckett and Defendant then talked about the accusations for approximately one hour and fourteen minutes. During this time, Defendant's wife was waiting in the lobby of the police station. As their initial conversation proceeded, Beckett confronted Defendant with the accusations made by the victim, and Defendant "started laughing." Beckett then told Defendant that this matter "wasn't funny," but involved "serious" accusations.
Beckett then confronted Defendant with "some of the medical findings" and further evidence gained from interviewing others during the investigation which allegedly substantiated the victim's accusations. At this point, Defendant stated, "I'm thinking about talking to an attorney." Beckett then told Defendant, "That's your prerogative," and asked him, "[A]re you telling me that you are wanting an attorney?" Defendant's response to this question was that he was "thinking about one[,]" and continued talking and denying the accusations.3
Beckett then arrested Defendant and proceeded to talk with Defendant's wife for approximately forty minutes. At the conclusion of that interview, she was arrested for child endangerment and neglect.
Following the arrest of Defendant's wife, Beckett gave his superior, Chief of Police Richardson, an update about the status of the investigation. According to Richardson, Beckett reported, inter alia, that Defendant "was thinking about whether or not he wanted an attorney, but that he had not requested one." Richardson then had Defendant brought to his office so he "could visit with him." Richardson advised Defendant of his rights and stated no threats or promises had been made to Defendant to get him to talk. Richardson talked to Defendant for about twenty minutes, and Defendant never stated he wanted a lawyer. Richardson then contacted Beckett and told him that Defendant was ready to talk to him.
After Beckett left Richardson's office with Defendant in tow, he reminded Defendant of the "rights waiver he had already signed." Defendant then made the inculpatory statement which was the subject of his motion to suppress. The trial court overruled Defendant's motion to suppress and admitted Defendant's statement at trial over his objection.
Additional facts are given when required to analyze Defendant's claims of trial court error.
Defendant's first point charges that the trial court erred in sustaining the State's objection to the introduction of "a videotape of [the victim's] initial interview given to David Thaman at the children's center." Defendant insists the videotape was admissible as both substantive and impeachment evidence per section 491.074, RSMo 1994, and its exclusion was prejudicial to Defendant since there was a reasonable probability the outcome of the case was affected by the trial court's rejection of the videotape evidence.4 To better understand this court's analysis of the first claim of trial court error requires a recital of additional facts.
During the investigative stage of this case, a DFS employee ("Thaman") interviewed the Victim. The interview was videotaped. At trial, defense counsel cross-examined Victim about alleged inconsistences between her testimony at trial and what she told Thaman during the DFS interview. Victim conceded her interview with Thaman had been videotaped, and her "at trial" testimony contained matters not mentioned in the videotape.5
As defense counsel continued to cross-examine Victim, it appears he started to lay a foundation for admission of the videotape by asking, "Have you had a chance to see that video?" Victim answered, "No." Defense counsel then asked if Defendant had ever threatened Victim. She answered: "He told me if I tell he would make my life miserable." Next, defense counsel asked: "Is that the same thing that you said on the videotape?" Victim answered, "Yeah, I'm pretty sure." At that point, defense counsel said to Victim: "Let me show you that videotape now and ask if, in fact, this is you on the videotape and it is a fair and accurate representation of what you said?" Before Victim answered, the prosecutor objected. He reminded the court that Victim had already testified she had not seen the videotape and argued that "[s]he can't authenticate this tape, and it is inadmissible to get in through this witness." Next came this colloquy between defense counsel and the court:
Defense counsel then moved to other questions without further attempts to authenticate the videotape and without making an offer of proof regarding authentication. At the end of his cross-examination of Victim, defense counsel did ask leave to recall her as a witness. He explained that he intended to impeach Victim with the contents of the videotape after Thaman properly identified it for "foundational purposes." However, Thaman never testified, Victim was never recalled, and no evidence was presented to establish the item shown Victim was what Defendant claimed it to be, i.e., a videotape of Thaman's interview of Victim.
It appears the trial court either ruled the videotape inadmissible because there was no authentication, or implicitly ruled that admission of the entire videotape raised the prospect that the jury would hear improper impeachment as to collateral matters, or irrelevant evidence, or inadmissible hearsay, or all of the foregoing.6 Although Defendant now argues the videotape was admissible because of section 491.074, he never raised that specific theory of admissibility at trial. He never mentioned the statute during trial and affirmatively told the trial judge he was offering the evidence to impeach Victim. Accordingly, Defendant's Point I argument is not properly preserved for appellate review....
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State v. Lloyd
... ... State v. Williams, 9 S.W.3d 3, 11 (Mo.App.1999). 5 Consequently, the ruling on a motion to suppress generally cannot be asserted as a point of error on appeal. Id. "[O]rdinarily, a point relied on that refers only to a ruling on such motion is fatally defective." State v. Shifkowski, 57 S.W.3d 309, 316 (Mo.App.2001). This rule attends because such a ruling is interlocutory and subject to change during trial. Id. "When a pretrial motion to suppress evidence is denied, the defendant must renew the objection or make a specific objection at trial when the evidence is presented ... ...
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State v. Smith
... ... Id. The Court will consider all evidence presented at trial, including evidence presented at a pretrial hearing. Id ... A trial court's ruling on a motion to suppress is interlocutory and is subject to change during trial. State v. Shifkowski, 57 S.W.3d 309, 316 (Mo.App. 2001). "Accordingly, a motion to suppress, in and of itself, preserves nothing for appeal, and ordinarily, a point relied on that refers only to a ruling on such motion is fatally defective." Id ... "To properly preserve the issue of the ... ...
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State v. Cain
... ... `Accordingly, a motion to suppress, in and of itself, preserves nothing for appeal, and ordinarily, a point relied on that refers only to a ruling on such motion is fatally defective.'" State v. Smith, 185 S.W.3d 747, 755 (Mo.App.2006) (citing and quoting State v. Shifkowski, 57 S.W.3d 309, 316 (Mo.App.2001)). "[A] point relied on attacking the trial court's ruling on a pretrial motion to suppress, without attacking the court's ruling admitting the evidence, is deficient in that it does not identify the actual ruling that is subject to challenge and, therefore, does ... ...